Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for January, 2006

Safari park gives up, fences off lions from cars

Fear of lawsuits by park guests who ignored warning signs and opened their car windows (see last Feb. 2) has had its effect:

In the competition for most feared creature, lawyers have now eclipsed lions.

If Lion Country Safari can’t stop people from opening their car windows in front of the dangerous cats, they can put up a fence to prevent a potential frightful outcome — lawsuits….Fearing an attack will cause a traumatic injury and lawsuit, the park put up a fence between the cars and the lions last month, essentially ending one of the quirky attractions of South Florida since 1967.

Once a popular family attraction around the country, most drive-through “safari” parks have now closed, “and only one in Winston, Oregon, still allows people to drive among the kings of the jungle”. (Rochelle E.B. Gilken, “At Lion Country, cats cut off from cars”, Palm Beach Post/Miami Herald, Dec. 29).

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Calif. court OKs countersuit in “shakedown” case

Just over a year ago, following numerous scandals about law firms’ filing of mass shakedown suits based on California’s s. 17200 unfair-competition law (UCL), the state’s voters curtailed somewhat the law’s extortive potential by requiring that actual harm to a complainant be shown. Last month, a California appeals court gave the nod to a second, potentially powerful way of restraining unwarranted s. 17200 suits, namely countersuits from outraged defendants. As Kimberly Kralowec notes (Dec. 20), “the Court of Appeal held that the litigation privilege did not bar a suit against lawyers accused of filing Trevor-like ‘shakedown’ suits under the former UCL. [The Trevor Law Group was the most notorious filer of shotgun UCL suits — ed.] In a now-familiar irony, the lawyers were themselves sued for violating the UCL, as well as for intentional interference with prospective economic advantage.” The case (Word document format) is American Products Co. v. Law Offices of Geller, Stewart & Foley, LLP.

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Update: Colo. recreational land use

Per the Colorado Civil Justice League:

House Bill 1049, sponsored by Rep. Witwer and Sen. Grossman, [if passed by the state legislature] would ensure that private landowners who grant public access to their lands for recreation aren’t penalized by the law for their generosity.

As we noted Aug. 5, the state’s reputation as a paradise for mountain climbing is suffering as fear of liability makes more landowners reluctant to grant access to climbers.

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Update: PPA litigation fizzles

Five years ago (Apr. 6-8, 2001), lawyers rushed to file lawsuits against manufacturers of dozens of over-the-counter cold remedies such as Alka-Seltzer Plus and Contac, whose formulations had long included a stimulant — phenylopropanolamine, or PPA — which had just been linked to a rare risk of hemorrhagic stroke and banned by the FDA. However, plaintiffs were soon faring badly in early trials and legal rulings (Oct. 28, 2003; May 1, 2004). Now The American Lawyer’s Alison Frankel has a retrospective:

…Plaintiffs lawyers talked about PPA as the next fen-phen, the next gold mine of a litigation. …

It wasn’t. And though there are still a few plaintiffs firms with significant PPA caseloads, many others are closing down their PPA dockets, settling the cases for which they can wrest something from defendants and dismissing the rest. “PPA was not a successful litigation for us,” concedes Christopher Seeger of New York’s Seeger Weiss, who has transferred his attention to the Vioxx litigation. Adds [Ellen] Relkin of Weitz & Luxenberg: “It hasn’t been as profitable as we would have liked.”

Why not? Frankel says drugmaker defendants battened down and refused to settle other than relatively strong cases (a strategy also adopted, less happily, by Merck). Although defendants lost fights to prevent federal multidistrict consolidation and to exclude plaintiffs’ scientific testimony, it soon developed that the incidence of strong cases was not in fact very high. And crucially, the caseload was divided up among many different defendants; as a result, the litigation never vaulted into the “bet-your-company” category. (“The Mass Tort Bonanza That Wasn’t”, Jan. 6).

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Update: “Protests Put Netflix Settlement On Hold”

A California court has delayed by a month its consideration of the controversial settlement of a class action against Netflix, the DVDs-by-mail service. The “delay enables both sides to review more than 50 objections, including one by the Federal Trade Commission and another by the Trial Lawyers for Public Justice, a national public-interest law firm.” (Caroline E. Mayer, Washington Post, Jan. 18). We covered the settlement Nov. 3 and Jan. 11.

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Torchlight procession? Try glowsticks

Officials in Looe, England, “have told organizers of a traditional nighttime Christmas procession to replace flaming torches with glow sticks.” The procession, a 20-year tradition, attracts about 500 people. “Local officials said they feared they might be sued if there was an accident caused by the torches, so they paid about $600 for 500 glow sticks. ‘It’s an absolute joke,’ said John Andrews. ‘How can you have a torchlight procession with glow sticks? We’ll be the laughing stock of the county.'” (“U.K. torchlight possession bans flames”, UPI, Nov. 19)(via van Bakel).

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Triggering the aero-litigation “cringe factor”

The law firm of Motley Rice has filed suit against Bombardier and numerous other defendants over the October 2004 crash of a Canadair regional jet operated by Pinnacle Airlines near Jefferson City, Mo., on behalf of the plane’s pilots. Aero-News.net editor Jim Campbell is decidedly critical of the suit. (“Barnstorming: Pinnacle Suit Pushes Aero-Litigation ‘Cringe-Factor’ Too Far”, Jan. 11).

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Viacom, Kellogg threatened with suit in Massachusetts

Wakefield, Mass., mother Sherri Carlson doesn’t like the commercials on the Nickelodeon network or the fact that Nickelodeon characters appear on boxes of cereal that she disapproves of. Thus (helped by a couple of nanny-state activist groups), rather than cancelling her cable bill, turning off the tv, or saying “No” to her three children, she’s announced plans to sue Viacom and Kellogg for billions of dollars under Massachusetts “consumer fraud” law, sending the required “intent to sue” letter. (Libby Quaid, AP, Jan. 19; Sarah Ellison and Janet Adamy, “Activists Plan to Sue Viacom and Kellogg Over Ads to Children”, Wall $treet Journal, Jan. 19; Hit & Run blog Jan. 19 Sullum and Gillespie). As Sullum notes, the reality-satire lag time is now down to a week.

Other discussion of the misuse of “consumer fraud” laws to interfere with free speech: Jul. 1, 2003; Nov. 30, 2004. As Eric Berlin points out, Ms. Carlson doesn’t even buy the sweetened cereal in question, so she’s asking for billions because she has to say “No” to her children. More on the problem of the injury-free class action at the AEI Liability Project.

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